The French version is broader, as it does not limit the relief normally available for delictual liability, including specific performance of the obligation. However, this disparity is of little consequence, since section 22 of the Act makes it impossible to obtain an order for specific performance against the Crown. Nevertheless, it should be noted that the possibility of awarding punitive damages pursuant to section 3, as was done in Peeters v.
Canada , D. The expression " manquement aux obligations " is a bit awkward from a civil law point of view. In Pratte J. Both of these very narrow interpretations, which have the effect of rejecting the complementarity of Quebec civil law to a certain point, are possibly less acceptable today in light of the new French wording, which refers to "obligations" in the plural. This term is more consistent with the liability to reparation for injury that flows from article C. Nonetheless, the English version still contains the term "duty", the scope of which is potentially narrower, at least in the civil law.
One possible solution to this problem would be to draft section 3 in the form of a doublet with paragraphs. In my opinion, if this solution were accepted, it should be used only for paragraph b and should be in as simple a form as possible. Moreover, this wording appears to me to be consistent with the common law, and could probably be translated in bijural language.
This list was clearly first drafted from a common law perspective, and it is an exact copy of the English and provincial legislation in this area. The concepts of "occupation" and "possession" in particular have a technical meaning in the civil law that is incongruous in the context of civil liability.
However, this incongruity does not seem to have caused any problems of interpretation for the courts. In the civil law, the term "care" 1 C. Since the Crown is likened to a private person in this context, there is no risk that it will be found liable for the fault of its "servants" outside the normal duties of their offices as long as provincial law makes this condition a factor in an employer's liability. Consequently, it might be thought that a master is not liable when his or her "servant" is personally liable in the absence of fault.
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Finally, article C. Whichever term is used, they both cover non-contractual liability in the broad sense, that is, liability based on fault and liability based on particular systems of presumption and of strict liability.
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The Crown is liable for the damage sustained by any person by reason of a motor vehicle, owned by the Crown, on a highway, for which the Crown would be liable if it were a private person of full age and capacity. The word " dommages " in the plural is ambiguous in the civil law, as it also is at common law: it can refer either to an injury or to damages, that is, an amount paid to a victim as compensation for an injury.
Although this ambiguity is not serious in the context of section 4, it would be preferable to remove it. The English version may be narrower in that it can be interpreted as restricting the relief available to that for personal injury, that is, bodily injury. Canada ,  2 F. Nord-Deutsche Versichersungs-Gesellschaft ,  S. See discussion under section 3. It should be noted that "private person" has been translated here as "particulier" rather than "personne physique".
Nothing in sections 3 to 7 makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority that, if those sections had not been passed, would have been exercisable by virtue of the prerogative of the Crown, or any power or authority conferred on the Crown by any statute, and, in particular, but without restricting the generality of the foregoing, nothing in those sections makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.
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The French version uses the term " pouvoir ", whereas the English version refers to a "power or authority". It should be determined whether these two concepts are identical. However, there is a more significant textual difference: the English version refers to a "power or authority conferred on the Crown by any statute", but the French version does not restrict the application of the section to the " pouvoirs " conferred on the Crown by statute.
No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. The French version does not have the same structure as the English version and is potentially broader, although it is hard to imagine a type of injury that would be covered by only one of the versions.
These two expressions are commonly used together, but the proper translation of " mandataire " in the civil law is "mandatary". No proceedings lie against the Crown by virtue of paragraph 3 a in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative. Such a person may be a tutor, a curator, or even a mandatary. In the former Civil Code, this term sometimes meant a successor article C.
The reality covered by the term "representative" is somewhat different at common law, as it also includes the persons responsible for administering an estate. Parliament's intention should be clarified in order to determine the meaning these words should be given. No proceedings lie against the Crown by virtue of section 4 in respect of damage sustained by any person by reason of a motor vehicle on a highway unless the driver of the motor vehicle or the driver's personal representative is liable for the damage so sustained. Both expressions contain the same ambiguity, namely how to determine the time when the claim can be said to have arisen.
As the same type of problem is likely to arise in applying the provisions of the Act concerning the jurisdiction of the courts, interest and prescription, it would be advisable to use consistent language.smtptest.logicdemosite.co.uk/sitemap8.xml
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Elsewhere in section 21, " cause d'action " is translated as "claim". All these provisions should be studied together with section 32 to ensure that the terminology is consistent. There are a few disparities here between the two versions, which may acquire different meanings. First, "agent" is not a common translation for "employee" in the civil law. The requirement that notice in writing of the claim be served in such a short period is inconsistent with article C. Paragraph 3 b is not applicable in respect of any property owned by the Crown, unless There is a fundamental difference between the French and English versions, which has already been pointed out by Professors Dussault and Borgeat.
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On the other hand, the English version suggests that if the property belongs to the Crown , paragraph 3 b is not applicable unless the conditions set out in section 13 are met, but it does not restrict the application of paragraph 3 b in other cases. This error must be corrected immediately in a direction that respects Parliament's intention. Similarly, this version excludes the owner of an animal or an immovable from liability under articles and C.
The French term does not have a clear meaning in the civil law, and it is not clear that this is a proper translation of the English version even at common law. This is a case of a "semi-bijural" translation; its consequence is that the conditions of application of each paragraph are not the same at common law and in the civil law, since the terms do not have the same meanings in both languages. It should also be noted that the verb tenses used here do not necessarily refer to the same point in time, as the English version suggests a continuity in occupation that is not clear from the French version.
Nothing in this Act authorizes proceedings in rem in respect of any claim against the Crown, or the arrest, detention or sale of any Crown ship or aircraft, or of any cargo or other property belonging to the Crown, or gives to any person any lien on any such ship, aircraft, cargo or other property. The word "detention" has a technical meaning in the civil law: "[a]ctual control of a thing" or "[d]etention based on a title which implies acknowledgement.
Article C. Furthermore, since this section makes it possible to order the Crown to pay, as the servant's employer and without personal fault, the punitive damages awarded against the servant, it can be argued that here it goes beyond the provincial jus commune in this area. C, art. C, s. This wording is based entirely on the common law, as it refers to two concepts that are distinct at common law but that overlap in the civil law. At common law, "injunction" refers to the general power of the courts to order that a thing be done, whereas "specific performance" is a term of contract law relating to the performance of specific contract obligations.
In the civil law, "specific performance" includes all forms of performance in kind, including the performance in kind of an extracontractual obligation, which will in most cases be obtained by means of an injunction. In any proceedings against the Crown, judgment shall not be entered against the Crown in default of appearance or pleading without leave of the court obtained on an application at least fourteen clear days notice of which has been given to the Deputy Attorney General of Canada. In any proceedings against the Crown, trial shall be without a jury.
Except as otherwise provided by this Act or the regulations, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings. This concept is unknown to the civil law in this form. At common law, it is the opposite of "general damages", that is, those damages that are presumed to be the natural consequence of a "wrong" committed by a person. In this sense, "special damages" are damages that flow from the specific circumstances and situation of the victim, which often require specific proof and prior notice at common law. A distinction is sometimes made between special damages, which can be assessed precisely pre-trial expenses and losses , and general damages, which are said not to be susceptible of precise assessment loss of future earning capacity, pain and suffering, etc.
Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within six years after the cause of action arose. In the civil law context, the French term covers both acquisitive prescription and extinctive prescription.
The English phrase has the appearance of a doublet in this respect, but it also evokes two distinct common law realities that do not necessarily have the same content as the civil law concept of prescription.
Except as otherwise expressly provided in this Act, nothing in this Act affects any rule of evidence or any presumption relating to the extent to which the Crown is bound by an Act of Parliament. For the purposes of determining liability in any proceedings by or against the Crown, a person who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown.
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The definition "servant" in section 2 is repealed and the following substituted therefor:. Morel and J.
Despite the controversy that has raged over this question, it seems that this solution is the one that has received the most support from commentators and the courts, and that the Crown is hesitant to apply it today. See in particular R. Dussault and L. Borgeat, Administrative Law: a Treatise , 2nd ed.
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